Citation Nr: 0930866
Decision Date: 08/18/09 Archive Date: 08/27/09
DOCKET NO. 07-06 636 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an initial disability rating greater than 20
percent for degenerative joint disease of the right shoulder,
adhesive capsulitis, bursitis, and tendinitis, prior to May
4, 2007; and a disability rating greater than 30 percent from
May 4, 2007.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to July
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico, which granted
service connection for the Veteran's right shoulder
disability and assigned an initial 20 percent disability
rating, effective October 11, 2005, the date of the Veteran's
claim. The Veteran expressed disagreement with the assigned
disability rating and perfected a substantive appeal.
In March 2007, the Veteran testified at a personal hearing
over which a decision review officer of the RO presided. A
transcript of the hearing has been associated with the
Veteran's claims file.
In an August 2007 rating decision, the RO increased the
disability rating for the Veteran's right shoulder disability
from 20 percent disabling to 30 percent disabling, effective
from May 4, 2007. Applicable law provides that absent a
waiver, a claimant seeking a disability rating greater than
assigned will generally be presumed to be seeking the maximum
benefit allowed by law and regulation, and that a claim
remains in controversy where less than the maximum available
benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38
(1993). The Veteran has not withdrawn the appeal as to the
issue of a disability rating greater than assigned,
therefore, the issue remains in appellate status.
FINDING OF FACT
For the entire period on appeal the Veteran's degenerative
joint disease of the right shoulder, adhesive capsulitis,
bursitis, and tendinitis, has been manifested by pain
throughout the range of motion, without evidence of
ankylosis, fibrous union of the humerus, nonunion of humerus
(false flail joint), or loss of head of the humerus (flail
shoulder).
CONCLUSION OF LAW
The criteria for an initial 40 percent disability rating, and
no higher, for degenerative joint disease of the right
shoulder, adhesive capsulitis, bursitis, and tendinitis, have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes
5003, 5010, 5200-03 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The Board has considered whether further
development and notice under the Veterans Claims Assistance
Act of 2000 (VCAA) or other law should be undertaken.
However, given the results favorable to the Veteran, further
development under the VCAA or other law would not result in a
more favorable result for the Veteran, or be of assistance to
this inquiry.
In the decision below, the Board grants an initial 40 percent
disability rating for the service-connected degenerative
joint disease of the right shoulder, adhesive capsulitis,
bursitis, and tendinitis. The RO will be responsible for
addressing any notice defect with respect to the rating and
effective date elements when effectuating the award. Dingess
v. Nicholson, 19 Vet. App. 473 (2006).
As to VA's duty to assist, the Board notes that pertinent
records from all relevant sources identified by him, and for
which he authorized VA to request, have been obtained.
38 U.S.C.A. § 5103A. VA has associated with the claims
folder the service treatment records and reports of his post-
service care. The Board notes that VA's duty to assist
includes the responsibility to obtain any relevant records
from the Social Security Administration. Voerth v. West, 13
Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74
(1996). In this regard, during the Veteran's March 2007
hearing, he indicated that he had applied for Social Security
Administration Disability Benefits because of a heart
disorder. As such, the Board finds that evidence associated
with a heart disorder would be without probative value in
adjudicating this claim. VA is not required to search for
evidence, which even if obtained, would make no difference in
the result. Allday v. Brown, 7 Vet. App. 517, 526 (1995)
(quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991).
Therefore, efforts to obtain these records are not warranted
prior to adjudicating the Veteran's claim. The Veteran has
also been afforded VA examinations.
In light of the foregoing, the Board finds that there is no
further action to be undertaken to comply with the provisions
of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and
that the Veteran will not be prejudiced by the Board's
adjudication of his claim.
Higher disability ratings
Disability ratings are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1. Other applicable, general policy
considerations are: interpreting reports of examination in
light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating
may accurately reflect the elements of disability, 38 C.F.R.
§ 4.2; resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However,
when an appeal arises from the initially assigned rating,
consideration must be given as to whether staged ratings
should be assigned to reflect entitlement to a higher rating
at any point during the pendency of the claim. Fenderson v.
West, 12 Vet. App. 119 (1999). Moreover, staged ratings are
appropriate in any increased-rating claim in which distinct
time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Pyramiding, the evaluation of the same disability, or the
same manifestation of a disability, under different
diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is
possible, however, for a Veteran to have separate and
distinct manifestations attributable to the same injury,
which would permit a rating under several diagnostic codes.
The critical element permitting the assignment of multiple
ratings under several diagnostic codes is that none of the
symptomatology for any one of the conditions is duplicative
or overlapping with the symptomatology of the other
condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Ratings for functional impairment of the upper extremities
depend on which extremity is the major extremity, i.e., the
one predominantly used by the individual. Only one extremity
is considered to be major and a person is presumed to be
right-handed unless there is evidence of left-handedness. 38
C.F.R. § 4.69. The Veteran testified during his March 2007
personal hearing that he was right-handed. Thus, the rating
for the right shoulder is to be made on the basis of the
right upper extremity being the major extremity.
The Court has emphasized that evaluation of musculoskeletal
disabilities includes consideration of functional loss due to
pain on motion, weakened movement, excess fatigability,
diminished endurance, or incoordination, and of impairment of
the Veteran's ability to engage in ordinary activities,
including employment. See 38 C.F.R. §§ 4.10, 4.40, 4.45,
4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Veteran's right shoulder condition is currently evaluated
as 20 percent disabling, for the period prior to May 4, 2007,
and 30 percent disabling, for the period beginning May 4,
2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-
5201. The first four digits of that diagnostic code indicate
that the schedule for arthritis due to trauma that exactly
matches the Veteran's disability, so that the criteria for an
analogous rating was used. 38 C.F.R. § 4.20. The second
part of that code indicates that Diagnostic Code 5201, which
governs limitation of motion of the arm at the shoulder
level, was used by analogy to rate the Veteran's right
shoulder condition.
Diagnostic Code 5010 is the code for arthritis due to trauma.
Traumatic arthritis is rated as degenerative arthritis. 38
C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis
is rated on the basis of limitation of motion under the
appropriate diagnostic code for the specific joint involved.
When the limitation of motion of the specific joint involved
is noncompensable under the appropriate diagnostic code, a
rating of 10 percent is for application for such joint if it
is a major joint. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. 38 C.F.R. § 4.71a,
Diagnostic Code 5003. For the purpose of rating disability
from arthritis, the shoulder is considered a major joint.
See 38 C.F.R. § 4.45.
Diagnostic Code 5200 provides that ankylosis of the
scapulohumeral articulation is to be rated as follows:
favorable ankylosis, with abduction to 60 degrees, can reach
mouth and head, 30 percent for the major shoulder;
intermediate ankylosis, between favorable and unfavorable, 40
percent for the major shoulder; unfavorable ankylosis,
abduction limited to 25 degrees from side, 50 percent for the
major shoulder. It is noted that the scapula and humerus
move as one piece. 38 C.F.R. § 4.71a.
Diagnostic Code 5201 provides that limitation of motion of
the arm at the shoulder level is rated 20 percent for the
major shoulder; limitation of motion of the arm midway
between the side and shoulder level is rated as 30 percent
for the major shoulder; limitation of motion of the arm to 25
degrees from the side is rated as 40 percent for the major
shoulder. 38 C.F.R. § 4.71a.
Diagnostic Code 5202 provides ratings for other impairment of
the humerus. Malunion of the humerus with moderate deformity
is rated as 20 percent for the major shoulder; malunion of
the humerus with marked deformity is rated as 30 percent for
the major shoulder. Recurrent dislocations of the humerus at
the scapulohumeral joint, with infrequent episodes, and
guarding of movement only at the shoulder level, are rated as
20 percent for the major shoulder; recurrent dislocations of
the humerus at the scapulohumeral joint, with frequent
episodes and guarding of all arm movements, are rated as 30
percent for the major shoulder. Fibrous union of the humerus
is rated as 50 percent for the major shoulder. Nonunion of
humerus (false flail joint) is rated as 60 percent for the
major shoulder. Loss of head of the humerus (flail shoulder)
is rated as 80 percent for the major shoulder. 38 C.F.R. §
4.71a.
Diagnostic Code 5203 provides ratings for other impairment of
the clavicle or scapula. Malunion of the clavicle or scapula
is rated as 10 percent for the major. Nonunion of the
clavicle or scapula without loose movement is rated as 10
percent for the major; nonunion of the clavicle or scapula
with loose movement is rated as 20 percent for the major.
Dislocation of the clavicle or scapula with loose movement is
rated as 20 percent for the major. Diagnostic Code 5203
provides an alternative rating based on impairment of
function of the contiguous joint. 38 C.F.R. § 4.71a.
Normal ranges of motion of the shoulder are flexion (forward
elevation) from 0 degrees to 180 degrees, abduction from 0
degrees to 180 degrees, external rotation from 0 degrees to
90 degrees, and internal rotation from 0 degrees to 90
degrees. 38 C.F.R. § 4.71, Plate I.
A VA joints examination report dated in January 2006 shows
that the Veteran reported that he had right shoulder pain
localized in the anterior aspect with radiation to the
cervical area associated with locking. He indicated that on
rainy days he had more pain. The examiner noted that there
were no constitutional symptoms of arthritis and no
incapacitating episodes of arthritis. The Veteran was noted
to have deformity, giving way, instability, pain, and
weakness of the right shoulder. The Veteran did not report
any stiffness, episodes of dislocation or subluxation, or
effusion of the right shoulder. He indicated that he has
daily severe flare-ups of his right shoulder condition which
would result in warmth, swelling, and tenderness. The
Veteran noted that he could bathe, drive, dress, or do light
house chores during flare-ups and that the flare-ups would
last 6 hours.
Physical examination revealed that right shoulder range of
motion was noted to be 70 degrees of forward elevation, 80
degrees of abduction, 70 degrees of external rotation, and 45
degrees of internal rotation. The Veteran was noted to have
pain throughout these ranges of motion. The examiner noted
that there was no bone loss, no recurrent shoulder
dislocation, no inflammatory arthritis, and no joint
ankylosis. The examiner summarized that the Veteran's
degenerative joint disease of the right shoulder, adhesive
capsulitis, bursitis, and tendinitis was manifested by
bursitis, crepitus, deformity, malalignment, tenderness,
painful movement, instability, and weakness. The examiner
reported that the Veteran's degenerative joint disease of the
right shoulder, adhesive capsulitis, bursitis, and tendinitis
prevented the Veteran from completing chores, sports, and
recreation. The Veteran was noted to have severe problems
with shopping, exercise, and traveling, and moderate problems
with feeding, bathing, dressing, toileting, and grooming, due
to his degenerative joint disease of the right shoulder,
adhesive capsulitis, bursitis, and tendinitis.
X-rays of the right shoulder revealed that the Veteran had an
orthopedic metallic screw at the inferior aspect of the
glenoid. There was a small exostosis at the medial aspect of
the proximal humeral metaphysic. There was no other bony,
articular, or soft tissue abnormality identified. The
diagnosis was status post right shoulder repair and small
exostosis of the proximal humerus.
A VA treatment note dated in November 2006 shows that the
Veteran reported severe right shoulder pain and loss of
sensation, grasp, and numbness. However, he was noted to
have an intact range of motion, adequate muscle tone, and no
deformities.
During the Veteran's March 2007 personal hearing, the Veteran
described that he felt he had total functional loss of his
right arm due to his shoulder condition. He indicated that
he was only being treated with medication for the pain.
A May 2007 VA examination report shows that the examiner
noted that the Veteran did not have a history of neoplasm,
nor were there constitutional symptoms of arthritis or
incapacitating episodes of arthritis. The Veteran reported
shoulder symptoms of deformity, giving way, instability,
pain, stiffness, weakness, locking, and effusion. No
episodes of dislocation or subluxation were reported. The
Veteran noted that he had severe daily flare-ups that would
last for hours and prevent him from doing anything. He
reported warmth, redness, swelling, and tenderness.
Physical examination revealed range of motion of the right
shoulder of 45 degrees of forward flexion, 45 degrees of
abduction, 25 degrees of external rotation, and 25 degrees of
internal rotation, with pain throughout the ranges of motion.
The examiner summarized the Veteran's right shoulder
condition was manifested by bursitis, creptitus, deformity,
malalignment, tenderness, painful movement, instability, and
weakness. The examiner added that the right shoulder
condition prevented the Veteran from completing chores,
shopping, exercise, sports, recreation, and travelling. He
was noted to have severe problems with feeding, bathing, and
grooming, and moderate problems with dressing, toileting, and
grooming, due to his right shoulder condition.
In light of the foregoing evidence, the Board finds that
entitlement to a disability rating of 40 percent, for the
entire period on appeal, is warranted for the Veteran's
degenerative joint disease of the right shoulder, adhesive
capsulitis, bursitis, and tendinitis. The Veteran's right
shoulder disability is manifested by pain throughout the
range of motion. As such, entitlement to an initial
disability rating of 40 percent, and no higher, for
degenerative joint disease of the right shoulder, adhesive
capsulitis, bursitis, and tendinitis, is granted for the
entire period on appeal.
The Board has considered whether a disability rating higher
than 40 percent would be warranted at any time during the
period on appeal. However, the Veteran's right shoulder
disability is not manifested by ankylosis, fibrous union of
the humerus, nonunion of humerus (false flail joint), or loss
of head of the humerus (flail shoulder). As such, there is
no applicable diagnostic code provision that would provide a
disability rating greater than 40 percent given the Veteran's
objective symptomatology.
In reaching the decision above, the Board considered the
doctrine of reasonable doubt. However, as the preponderance
of the evidence is against entitlement to an initial
disability rating greater than 40 percent for the Veteran's
right shoulder condition for any period on appeal, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
Extraschedular consideration
The Board finds that this matter need not be remanded to have
the RO refer the Veteran's claim to the Under Secretary for
Benefits or to the Director of the Compensation and Pension
Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of
an extraschedular rating. The Board notes the above
determination is based on application of pertinent provisions
of the VA's Schedule for Rating Disabilities, and there is no
showing that the Veteran's disability reflect so exceptional
or so unusual a disability picture as to warrant the
assignment of a higher evaluation on an extraschedular basis,
and indeed, neither the Veteran nor his representative have
identified any exceptional or unusual disability factors.
See 38 C.F.R. § 3.321. The Board observes that there is no
showing the Veteran's degenerative joint disease of the right
shoulder, adhesive capsulitis, bursitis, and tendinitis
disability results in marked interference with employment.
In this regard, during his May 2007 VA joints examination,
the Veteran indicated that he could not work due to his
peripheral vascular disease, which is not connected to
service. His right shoulder disability has not required
frequent periods of hospitalization, or otherwise rendered
impractical the application of the regular schedular
standards. Absent evidence of these factors, the criteria
for submission for assignment of an extraschedular rating are
not met. Thus, a remand of this claim to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not
necessary. See Bagwell v. Brown, 9 Vet. App. 337, 338-9
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to an initial 40 percent disability rating, and
no higher, for degenerative joint disease of the right
shoulder, adhesive capsulitis, bursitis, and tendinitis, is
granted, subject to the applicable criteria governing the
payment of monetary benefits.
____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs